Citation Nr: 0120959
Decision Date: 08/16/01 Archive Date: 08/17/01
DOCKET NO. 00-25 388 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in San Diego,
California
THE ISSUE
Entitlement to an effective date prior to April 28, 1998, for
the assignment of a 60 percent disability rating for a
herniated nucleus pulposus and a total disability rating
based on individual unemployability.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
N. W. Fabian, Counsel
INTRODUCTION
The veteran had active duty from May 1951 to May 1955 and
from August 1955 to December 1960. This matter comes to the
Board of Veterans' Appeals (Board) from a November 1999
rating decision of the Department of Veterans Affairs (VA)
Regional Office (RO). In that rating decision the RO
increased the disability rating for the low back disorder
from 40 to 60 percent and granted a total rating based on
individual unemployability, both of which were effective
April 28, 1998. The veteran perfected an appeal of the
effective date assigned for the total rating. Because
entitlement to the total rating was dependent upon the
increase in the rating for the low back disorder from 40 to
60 percent, the Board finds that the veteran's appeal
incorporates the issue of entitlement to an earlier effective
date for the assignment of the 60 percent rating. Buckley v.
West, 12 Vet. App. 76 (1998) (the Board has jurisdiction over
all issues that are appropriately identified from the radix
of the notice of disagreement).
The veteran submitted a November 1997 notice of disagreement
with the denial of Vocational Rehabilitation services, and
indicated that his appeal was dependent on the denial of a
total rating based on individual unemployability. It is not
clear from the documents in the claims file whether a
statement of the case was issued regarding that issue, or if
the issue was otherwise resolved by the assignment of a total
rating. This issue is, therefore, being referred to the RO
for clarification and appropriate action.
FINDINGS OF FACT
1. The RO has notified the veteran of the evidence needed to
substantiate his claim, obtained all relevant evidence
designated by the veteran, and provided him VA medical
examinations in order to assist him in substantiating his
claim for VA compensation benefits.
2. In an August 1995 rating decision the RO denied
entitlement to a combined disability rating in excess of
20 percent. The veteran perfected an appeal of the August
1995 rating decision, and in an April 1997 decision the RO
increased the rating for the low back disability from 20 to
40 percent. The veteran then withdrew his appeal of the
August 1995 decision, and the April 1997 decision is final.
3. The veteran has not raised a valid claim of clear and
unmistakable error in the August 1995 or April 1997
decisions.
4. The veteran did not again claim entitlement to an
increased rating for his service-connected disabilities until
April 28, 1998.
5. The evidence does not show that the low back disorder
increased in disability from 40 to 60 percent or that the
veteran became unable to secure or follow substantially
gainful employment due to service-connected disabilities
within the one year period preceding the April 1998 claim.
CONCLUSION OF LAW
The criteria for an effective date prior to April 28, 1998,
for the assignment of the 60 percent disability rating for a
herniated nucleus pulposus and a total rating based on
individual unemployability are not met. 38 U.S.C.A. §§ 5101,
5107, 5109A, 5110, 7105 (West 1991), as amended by The
Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475,
114 Stat. 2096 (2000); 38 C.F.R. §§ 3.151, 3.155, 3.157,
3.400, 4.16, 20.1103 (2000).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
Factual Background
The service medical records show that the veteran was
separated from service due to disability related to herniated
nuclei pulposi at L4-L5 and L5-S1. Based on a claim filed in
August 1970 and as the result of a November 1970 VA
examination, in a January 1971 rating decision the RO granted
service connection for herniated nuclei pulposi at L4-L5 and
L5-S1 and for mild external hemorrhoids, and assigned a 20
percent rating and a zero percent rating, respectively.
Following October 1976 and August 1977 claims for an
increased rating, the Board denied entitlement to a
disability rating in excess of 20 percent for the low back
disorder in September 1978.
In August 1994 the veteran again claimed entitlement to an
increased rating for his service connected disabilities. A
VA examination in January 1995 resulted in the confirmed
diagnosis of degenerative disc disease, and in an August 1995
rating decision the RO denied entitlement to a rating in
excess of 20 percent for the low back disorder and a
compensable rating for hemorrhoids. The RO found, based on
the results of the examination and the available VA treatment
records, that the evidence did not show that the veteran
suffered severe recurring attacks of low back symptoms with
only intermittent relief.
The veteran was notified of the August 1995 decision and
submitted a notice of disagreement in January 1996 regarding
the denial of an increased rating for the low back disorder.
The RO provided him a statement of the case in March 1996.
In his May 1996 substantive appeal he reported that his low
back disorder had worsened, as shown by the medication that
he had been given for pain, and that he had been receiving
Social Security disability benefits.
In conjunction with his appeal of the August 1995 decision
the RO tried on numerous occasions to obtain a copy of his
file from the Social Security Administration (SSA), but
received a response that no file was available.
During a September 1996 VA examination the veteran reported
that he had not worked for four or five years because of pain
in his back that radiated into both lower extremities.
Examination showed that his motor, reflexes, and sensation
were normal. The examiner stated that his primary problem
was pain, in that there was only moderate muscle spasm. The
range of motion of the lumbar spine was significantly
reduced, but an X-ray study showed only mild degenerative
changes, no evidence of degenerative disc disease, and
questionable unilateral spondylolysis at L5 on the left.
In conjunction with a December 1996 VA examination the
veteran complained of pain, stiffness, and limitation of
motion of the low back that radiated into the hips. On
examination the range of motion was markedly diminished, and
the veteran's spouse had to assist him in dressing. He moved
very slowly, and all motions were accompanied by expressions
of pain. The examiner determined that the functional
impairment resulting from the low back disability was large,
but did not conduct any further diagnostic testing regarding
the extent of pathology in the low back.
Based on the results of the VA examinations and testimony at
an August 1996 hearing, in April 1997 the RO Hearing Officer
increased the rating for the low back disability from 20 to
40 percent effective September 1, 1994. Following the grant
of the increased rating, in an April 1997 statement the
veteran requested that his appeal of the rating assigned for
the low back disorder be withdrawn. Because the perfected
appeal was withdrawn, the April 1997 decision is final.
38 U.S.C.A. § 7105(c); Hamilton v. Brown, 4 Vet. App. 528
(1993)(en banc), aff'd, 39 F.3d 1574 (Fed. Cir. 1994) (a
notice of disagreement ceases to be effective if withdrawn);
38 C.F.R. § 20.1103.
In a statement received at the RO on April 28, 1998, the
veteran claimed entitlement to a total rating based on
individual unemployability. In conjunction with that claim
he submitted a notice from the SSA showing that he had been
granted disability benefits effective in June 1987. The
grant of benefits was based on a decision by an
Administrative Law Judge (ALJ) of that agency.
The copy of the ALJ decision, which the veteran also
submitted, indicates that the veteran had been unemployed
since December 19, 1986, due to severe osteoarthritis and
disc disease of the cervical and lumbar spine, osteoarthritis
in multiple joints, fibrositis syndrome, osteoarthritis in
the right wrist and both knees, carpal tunnel syndrome, an
affective disorder, and a personality disorder. During a
hearing before the ALJ the veteran testified that he was
unable to perform his past work as an electrician due to
severe pain in the knees, right arm, shoulder, elbow, hand,
and wrist. The ALJ referenced private treatment records that
showed that the veteran underwent bilateral knee
arthroscopies and partial medial meniscectomies in November
1981 due to severe degenerative changes in both knees, with
persistent knee pain and limitation. He had also incurred a
fracture of the distal right radius, with residual disability
and carpal tunnel syndrome in the right upper extremity. His
treating physician provided evidence that he was disabled due
to chronic pain in his knees and neck. Based on evidence
provided by a vocational consultant, the ALJ determined that
the veteran was not able to return to his past relevant work
as an electrician and that he had no transferable skills that
would allow him to work in sedentary employment. Based on
his age, education, vocational background and the combination
of his medical and psychiatric impairments, the ALJ found
that the veteran was entitled to Social Security disability
benefits.
The veteran also presented a March 1988 medical report from
J. Duane Palmer, M.D., in which Dr. Palmer stated that the
veteran had appeared for the examination with crutches due to
a knee disability. He provided "voluminous" medical evidence
to the physician regarding the bilateral knee arthroscopies
in November 1981, with medial meniscus removal, and severe
gout since 1984. He had chronic pain due to cervical disc
disease at multiple levels, which was diagnosed in 1984; a
herniated nucleus pulposus at multiple levels in the lumbar
spine; and chronic, severe headaches following the
development of a cephalo-hematoma during the November 1981
surgery. He also complained of chronic pain in the right
wrist following a fracture and chronic pain and immobility in
the right shoulder, both of which were aggravated by the use
of crutches. He had been placed on 90 percent workers'
compensation several years previously due to his multiple
medical problems.
During the examination the veteran's primary complaints
pertained to the right arm, with the onset of chronic pain in
the right shoulder in 1984. Examination showed that he had
considerably restricted mobility in the right shoulder due to
probable internal derangement and a rotator cuff tear. He
also had deformity and considerable weakness in the right
hand and wrist and tendonitis in the right elbow. Dr. Palmer
found that the veteran was disabled due to a probable rotator
cuff injury, tendonitis of the right elbow, and deformity of
the right wrist, which were complicated by herniated discs in
the lumbar region, degenerative disc disease in the cervical
spine, probably severe hyperlipoproteinemia, and degenerative
disease of both knees.
VA treatment records show that the veteran received physical
therapy for right shoulder and low back pain from May 1997
through April 1998 and treatment from the Chronic Pain
Clinic. His problem list also included steatohepatitis,
insulin-dependent diabetes mellitus, hypertension, status
post cerebrovascular accident, and obesity. None of the
treatment records prior to April 1998 documents the extent of
the low back disability.
The RO provided the veteran a VA orthopedic examination in
July 1998, during which he reported having not worked since
1986 because of his back problems. He also reported using
crutches periodically due to back pain. He demonstrated
significant limitation of motion, but the back was normal on
examination, with no evidence of muscle spasm, deformity,
objective evidence of painful motion, weakness, tenderness,
or other abnormality. The motor examination showed 5/5
muscle strength throughout, normal reflexes, intact
sensation, and no evidence of muscle atrophy. His gait and
station were normal. The examiner interpreted an
X-ray study as being within normal limits and provided a
diagnosis of chronic intermittent low back pain.
In a March 1999 rating decision the RO denied entitlement to
a total rating based on individual unemployability on the
basis that the veteran was unemployable due to non-service
connected impairments. Subsequent to that decision, in March
1999 the veteran requested an increase in the rating assigned
for his low back disability. He also submitted a notice of
disagreement with the March 1999 denial of a total rating,
and claimed that he had been unemployed since 1986 because of
his "whole" condition, which he claimed to have incurred in
service in 1957. Following the receipt of additional medical
evidence, in the November 1999 rating decision the RO
increased the rating for the low back disability from 40 to
60 percent and granted entitlement to a total rating based on
individual unemployability, both of which were effective
April 28, 1998.
In his June 2000 notice of disagreement pertaining to the
effective date for the assigned rating, the veteran asserted
that he is entitled to an effective date of December 19,
1986, because that is when Social Security determined him to
be disabled. In support of his appeal he submitted a May
2000 medical report from Tom Yen, M.D., showing that he
suffered from chronic bilateral knee pain due to severe
degenerative arthritis; chronic low back pain, with
diagnostic evidence of mild foraminal narrowing/bulge at L4-
L5 with no central stenosis and facet disease at L5 and S1;
diabetes mellitus with neuropathy; coronary artery disease,
status post myocardial infarction with chronic chest pain;
hypertension, poorly controlled; a cerebrovascular accident
in 1996 with right hemiparesis, resolved; steatohepatitis;
hyperlipidemia; gastroesophageal reflux disease; an intra-
articular comminuted fracture of the right distal radius in
1986; carpal tunnel syndrome; chronic neck pain due to
cervical degenerative disc disease with radicular symptoms;
and Bell's palsy.
Duty to Assist
The statute pertaining to VA's duty to assist the veteran in
developing the evidence in support of his claim was recently
revised. In accordance with the revised statute, VA has a
duty to notify the veteran of the evidence needed to
substantiate his claim. VA also has a duty to assist the
veteran in obtaining such evidence, including obtaining
private records, if a reasonable possibility exists that such
assistance would aid in substantiating the claim.
In the case of a claim for compensation benefits, the duty to
assist also includes obtaining the veteran's service medical
records and other records pertaining to service; records of
relevant treatment at VA facilities, or provided at the
expense of VA; and any other relevant records held by any
Federal department or agency identified by the veteran. If
VA is unable to obtain records identified by the veteran, VA
must notify him of the identity of the records that were not
obtained, explain the efforts to obtain the records, and
describe any further action to be taken to obtain the
records. Also in the case of a claim for disability
compensation, the duty to assist includes providing a medical
examination or obtaining a medical opinion if such an
examination or opinion is necessary to make a decision on the
claim. The Veterans Claims Assistance Act of 2000, Pub. L.
No. 106-475, 114 Stat. 2096 (2000) (to be codified at
38 U.S.C. § 5103 and 5103A). The provisions of the VCAA
apply to all claims filed on or after the date of enactment
of the act, or filed before the date of enactment and not yet
final as of that date. Veterans Claims Assistance Act of
2000, Pub. L. No. 106-475, § 7, subpart (a), 114 Stat. 2096,
2099-2100 (2000); Holliday v. Principi, 14 Vet. App. 282-83
(2001), mot. for recons. denied (Apr. 27, 2001) (per curiam
order).
The RO informed the veteran of the evidence needed to support
his claim in June 1998 and May 1999. The RO provided him a
statement of the case in December 2000, in which the RO
informed him of the regulatory requirements for entitlement
to the claimed benefits, and the rationale for not awarding
benefits. The veteran's representative reviewed the claims
file in January and March 2001, and did not indicate that the
veteran had any additional evidence to submit. The RO
provided copies of the claims file to the veteran in July
2000. The RO notified the veteran that his case was being
sent to the Board, and informed him that any additional
evidence that he had should be submitted to the Board. The
Board finds, therefore, that VA has fulfilled its obligation
to inform the veteran of the evidence needed to substantiate
his claim.
The RO has obtained the VA treatment records designated by
the veteran and provided him VA medical examinations in July
1998 and June 1999. The veteran and his representative have
submitted numerous statements in support of his appeals. The
RO tried to obtain a copy of his claims file from the SSA,
but was notified that no file was available. The veteran
provided copies of the SSA decision in which benefits were
awarded. The veteran has not indicated the existence of any
other evidence that is relevant to his appeal. The Board
concludes that all relevant data has been obtained for
determining the merits of the veteran's appeal and that VA
has fulfilled its obligation to assist him in the development
of the relevant evidence.
Laws and Regulations
A specific claim in the form prescribed by the Secretary must
be filed in order for benefits to be paid or furnished to any
individual under the laws administered by VA. 38 U.S.C.A.
§ 5101(a); McTighe v. Brown, 7 Vet. App. 29, 30 (1994);
38 C.F.R. § 3.151(a). Any communication or action indicating
an intent to apply for one or more benefits under the laws
administered by VA, from a veteran or his representative, may
be considered an informal claim. Such informal claim must
identify the benefit sought. Upon receipt of an informal
claim, if a formal claim has not been filed, an application
form will be forwarded to the claimant for execution. If
received within one year from the date it was sent to the
veteran, it will be considered filed as of the date of
receipt of the informal claim. When a claim has been filed
which meets the requirements of 38 C.F.R. §§ 3.151 or 3.152,
an informal request for increase or reopening will be
accepted as a claim. 38 C.F.R. § 3.155(a).
A report of examination or hospitalization which meets the
requirements of this section will be accepted as an informal
claim for benefits under an existing law or for benefits
under a liberalizing law or VA issue, if the report relates
to a disability which may establish entitlement. Once a
formal claim for compensation has been allowed, receipt of a
report of examination or hospitalization by VA or the
uniformed services, evidence from a private physician or
layman, or evidence from a state or other institution will be
accepted as an informal claim for benefits. In the case of
examination or hospitalization by VA or the uniformed
services, the date of outpatient or hospital examination or
date of admission will be accepted as the date of receipt of
a claim. The provisions of the preceding sentence apply only
when such reports relate to examination or treatment of a
disability for which service-connection has previously been
established or when a claim specifying the benefit sought is
received within one year from the date of such examination,
treatment or hospital admission. In the case of evidence
from a private physician, a layman, or a state or other
institution, the date of receipt of such evidence by VA will
be accepted as the date of the claim. 38 C.F.R. § 3.157.
Except as otherwise provided, the effective date of an award
based on an original claim or a claim for an increased rating
shall be fixed in accordance with the facts found, but shall
not be earlier than the date of receipt of the claim. The
effective date of an award of increased compensation shall be
the earliest date at which it is ascertainable that an
increase in disability has occurred, if the claim for an
increased rating is received within one year from such date,
otherwise the date of receipt of the claim. 38 U.S.C.A.
§ 5110(a), (b)(2); 38 C.F.R. § 3.400(o). The phrase
"otherwise, date of receipt of claim" applies only if a
factually ascertainable increase in disability occurred more
than one year prior to filing the claim for an increased
rating. Harper v. Brown, 10 Vet. App. 125 (1997).
The effective date based on a finding that a prior decision
contained clear and unmistakable error is the date from which
benefits would have been payable if the corrected decision
had been made on the date of the reversed decision.
38 C.F.R. § 3.400(k).
A decision of the RO becomes final and binding and is not
subject to revision on the same factual basis in the absence
of clear and unmistakable error. Where evidence establishes
such error, the prior decision will be reversed or amended.
38 U.S.C.A. §§ 5109A, 7105; 38 C.F.R. §§ 3.105, 20.1103.
If the schedular rating is less than total, a total
disability evaluation can be assigned based on individual
unemployability if the veteran is unable to secure or follow
a substantially gainful occupation as a result of service-
connected disability, provided that the veteran has one
service-connected disability rated at 60 percent or higher;
or two or more service-connected disabilities, with one
disability rated at 40 percent or higher and the combined
rating is 70 percent or higher. The existence or degree of
non-service connected disabilities will be disregarded if the
above-stated percentage requirements are met and the
evaluator determines that the veteran's service-connected
disabilities render him incapable of substantially gainful
employment. 38 C.F.R. § 4.16(a). All veterans who are shown
to be unable to secure and follow a substantially gainful
occupation by reason of service-connected disability shall be
rated totally disabled. If the veteran is unemployable due
to service-connected disability, and the percentage
requirements of 38 C.F.R. § 4.16(a) are not met, the case
should be submitted to the Director of the Compensation and
Pension Service for consideration of an extra-schedular
rating. 38 C.F.R. § 4.16(b).
The evaluation of the level of disability is to be based on
review of the entire evidence of record and the application
of all pertinent regulations. See Schafrath v. Derwinski,
1 Vet. App. 589 (1991). Once the evidence is assembled, the
Board is responsible for determining whether the
preponderance of the evidence is against the claim. If so,
the claim is denied; if the evidence is in support of the
claim or is in equal balance, the claim is allowed.
38 U.S.C.A. § 5107, as amended by the Veterans Claims
Assistance Act of 2000, Pub. L. No. 106-475, § 4, 114 Stat.
2096 (2000); see Gilbert v. Derwinski, 1 Vet. App. 49, 55
(1990); 38 C.F.R. § 4.3.
Analysis
The veteran contends that he is entitled to an effective date
of December 19, 1986, for the assignment of the total
disability rating inasmuch as Social Security found him
disabled from that date. It should be noted at the outset
that he was awarded Social Security disability benefits based
on numerous disabilities, among which were arthritis of
multiple joints including the right wrist, hand and knees, a
cervical spine disability, fibrositis, carpal tunnel
syndrome, an affective disorder and a personality disorder,
none of which is service-connected, along with his service-
connected low back disability. The Social Security award
also was based on the veteran's age. Inasmuch as a VA total
rating based on individual unemployability may be based only
on service- connected disabilities and may not consider age,
any conclusion that the award of Social Security benefits
automatically established unemployability for VA compensation
purposes is flawed. In fact, Dr. Palmer's report indicates
that the veteran presented at his office to be evaluated
primarily for right upper extremity/shoulder complaints,
possibly aggravated by his use of crutches for a knee
disability. In regard to lumbar spine disability, Dr.,
Palmer noted only that disc disease had been diagnosed in
1984 and that the veteran's inability to work was due to
"multiple medical problems" including lumbar disc disease.
The veteran is reminded that his only service-connected
disabilities are external hemorrhoids, rated as zero percent
disabling since August 1970, and the low back disorder. As
previously stated, the grant of the total disability rating
was dependent on the assignment of a 60 percent disability
rating for the low back disorder, in that in the absence of
such a rating the veteran did not meet the percentage
requirements for a total rating based on unemployability.
38 C.F.R. § 4.16(a). The veteran's appeal, therefore,
incorporates the issue of entitlement to an effective date
prior to April 28, 1998, for the assignment of the 60 percent
rating.
In order to warrant an effective date based on when the SSA
found the veteran to have become disabled (had the evidence
showed unemployability due to service connected disability at
that time), he would have had to submit a claim for an
increased rating within one year of the December 1986 claimed
increase in disability. Hurd v. West, 13 Vet. App. 449
(2000). Following the September 1978 denial of a rating in
excess of 20 percent for the low back disability by the
Board, the veteran did not again submit a claim, formal or
informal, for an increased rating for his service-connected
disabilities until August 1994. Entitlement to an effective
date for the increased rating prior to August 1993 is,
therefore, precluded as a matter of law. Shields v. Brown,
8 Vet. App. 346, 349 (1995) (an earlier effective date cannot
be granted in the absence of statutory authority, which
requires the filing of a claim).
Based on the August 1994 claim for an increased rating, the
RO increased the rating for the low back disability to
40 percent in the April 1997 rating decision and, in essence,
denied entitlement to a rating in excess of 40 percent.
Because following the March 1997 rating decision that granted
a 40 percent rating for the back disability, the veteran
withdrew his appeal, the 1995 and April 1997 decisions are
final. 38 U.S.C.A. § 7105(c); 38 C.F.R. § 20.1103. An
effective date based on a claim for a higher rating submitted
prior to the April 1997 decision would, therefore, be
dependent on a finding that the April 1997 decision was
clearly and unmistakably erroneous, of which there is no
allegation. 38 C.F.R. § 3.400(k).
The veteran's only argument regarding an earlier effective
date for the total rating appears to be that he has been
unemployable since 1986. While that may be true, such is
shown clearly and unequivocally to have been due to his
multiple disabilities, most of which are not service
connected. The veteran should understand that VA can not pay
disability compensation for any of those nonservice-connected
disabilities and they could not be properly considered in
rating his back disability or determining unemployability.
He has not alleged any specific error in the August 1995 or
April 1997 rating decisions. As already noted he claims that
he is entitled unemployability benefits effective in December
1986 based on the SSA determination which was based on all of
his impairments. The Board finds, therefore, that he has not
raised a claim of clear and unmistakable error in the April
1997 decision and it is final. Luallen, 8 Vet. App. at 96.
The veteran's representative contends that the report of the
September 1996 examination, during which the veteran reported
being unable to work for four or five years due to his back
disability, constituted an informal claim for a total rating
base on unemployability. Subsequent to that examination,
however, the RO denied entitlement to a rating in excess of
40 percent for the low back disability. Assuming that the
veteran's statement constituted an informal claim for a total
rating, in accordance with 38 C.F.R. § 3.155(c) that claim
was adjudicated in April 1997. The Board finds, therefore,
that entitlement to an effective date based on a claim filed
prior to April 1997 is not shown as a matter of law. Hazan
v. Gober, 10 Vet. App. 511 (1997).
Following the April 1997 decision, the veteran did not again
claim entitlement to an increased rating until April 28,
1998. He is potentially entitled to an effective date of
April 28, 1997, for the increased rating. 38 C.F.R.
§ 3.400(o). Although the VA treatment records from May 1997
to April 1998 show that he intermittently complained of back
pain, none of the treatment records documents the functional
limitations attributed to the low back disability prior to
April 1998, nor do the records indicate that he was
unemployable due to service-connected disability. The
veteran has not alluded to the existence of any other
evidence that provides that documentation. The Board finds,
therefore, that it is not factually ascertainable that an
increase in disability occurred prior to April 1998, or that
the veteran became unable to secure or follow substantially
gainful employment prior to April 1998.
For the reasons shown above the Board has determined that the
preponderance of the evidence is against the appeal to
establish entitlement to an effective date prior to April 28,
1998, for the assignment of a 60 percent disability rating
for a herniated nucleus pulposus and a total disability
rating based on individual unemployability.
ORDER
The appeal to establish entitlement to an effective date
prior to April 28, 1998, for the assignment of a 60 percent
disability rating for a herniated nucleus pulposus and a
total disability rating based on individual unemployability
is denied.
JANE E. SHARP
Member, Board of Veterans' Appeals